01 Feb 2022
According to TUC research in 2020, a quarter (24.5 per cent) of teachers and educational professionals worked unpaid overtime at an average rate of 10.7 hours per week. Whether its because of under-staffing, the need for research and preparing materials for classes or marking work, additional hours and responsibilities are common in the education sector.
At Morrish Solicitors we all too often see the consequences of this, and frequently advise on grievances, possible disability discrimination claims or grounds to resign from employment when it all gets too much.
But what can be done about being over-worked and over-burdened with responsibility? Can someone refuse to carry out extra responsibilities or avoid the extra 10 hours’ unpaid overtime? And what can be done when the matter can’t be resolved amicably and informally?
This article explores some of those issues.
What does the contract say?
It’s the classic starting point for most questions around duties and workloads. What does the employment contract say about your duties, responsibilities and working hours?
There is a legal obligation to provide particulars of the job title and working hours within a contract of employment. And most roles will come with a job description, which set out the main duties expected of you.
However, most contracts of employment will also contain flexibility clauses that give the employer the right to require the carrying out of other duties from time to time as it may reasonably require and oblige you to work additional hours, often without extra remuneration, as may be necessary for the proper performance of your duties or to meet the needs of the organisation.
Such clauses make things more difficult but not impossible. If the extra duties go beyond what is “reasonable” or “necessary” you could have cause for complaint.
Working Time Limits
Under the Working Time Regulations 1998, employers are required to take all reasonable steps to ensure that workers do not work more than 48 hours per week, averaged over a period of 17 weeks (in most cases). It is possible for workers to opt out of the average maximum 48-hour week if certain conditions are met. Although it is lawful to include an opt-out in the contract of employment itself, it is considered better practice to use a separate opt-out agreement.
So, if your concern is about excessive working hours, you should check your documents and contract and see if you have opted-out of the working time limits.
It is always a good idea to record all your working hours so you can easily monitor how much extra time you have worked. Making you work excessive hours can, in certain circumstances, amount to a breach of the implied terms of the employment contract (see below), as well as the Working Time Regulations.
So, what can I do if too much is being expected of me?
If you’re asked to do something at work that you’re not sure fits within your job description or creates excessive workloads, you need to be careful. Refusing to follow a management instruction can lead to disciplinary action.
So, before you object, you should review your contract and job description, look at the limits of your role (both in practice and according to the documents) and decide if the employer is being unreasonable and operating outside of the contractual or statutory limits (e.g. on working time).
If you remain concerned, there are a number of practical steps can you take:
- Speak to your line manager informally. Explain the problem. Ask for support. And try to agree an amicable resolution.
- Raise a grievance. If the informal approach doesn’t solve the problem, you may feel you need to lodge a formal grievance. An independent investigation into your complaints should be progressed. The grievance procedure will also have an appeal process if things cannot be resolved.
- If 1 and 2 above do not resolve the issues, you should seek advice from your professional association. You may need to pursue a legal claim if all else fails.
What sorts of claims might be pursued?
A variety of potential legal claims can arise from being given too much work, unreasonable additional duties or forcing someone to work excessive hours:
- Personal injury, based on the law of negligence
- Breach of contract
- Unfair dismissal
- Discrimination – e.g. if the stress caused amounts to a disability
- Harassment
Personal injury
An employee who wants to bring a personal injury claim as a result of work-related stress will need to identify the breach of the duty of care they say their employer has committed that has given rise to the injury they have suffered; that the injury they have suffered is an actionable physical or psychiatric injury; that it was reasonably foreseeable that the employer's breach of duty would result in the injury suffered and that the breach of duty caused the injury complained of.
Breach of contract
It is an implied term of every employment contract that an employer will take reasonable care of the health and safety of employees and provide and monitor so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by the employees of their contractual duties.
There is also an implied term of mutual trust and confidence that exists in every employment contract, regulating relations between the employee and employer.
The contract of employment or Staff Handbook might also contain express terms, such as contractual disciplinary or capability procedures which if not followed, might give rise to a breach of contract claim.
Whilst technically a breach of such terms can give rise to a claim, in the absence of any financial loss or injury being suffered, most individuals do not pursue these as stand-alone claims. More commonly, these breaches of contract are relied on in a constructive unfair dismissal claim.
Unfair dismissal
Where an employee is suffering from stress as a result of being overburdened, they may argue that this has been caused by their employer requiring them to deal with unrealistic and excessive workloads.
To bring a constructive unfair dismissal claim, the employee must resign (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer's conduct. The following elements are needed:
- A repudiatory (very serious) breach of the employment contract on the part of the employer which justifies the employee resigning.
- The employee must resign in response to the breach.
- The employee must not delay too long in resigning.
A Tribunal would also have to determine if the dismissal by resignation was “unfair”, which involves an assessment of the employer’s conduct.
The right to bring a claim for unfair dismissal is available only to an employee who has two years' service.
Constructive dismissal claims are notoriously difficult to pursue and win and have the rather unattractive requirement of having to resign, which most employees don’t want to do. Whether the employer’s conduct in allocating additional responsibilities or duties or demanding excessive working hours is serious enough to amount to a breach of trust and confidence depends on the facts of the case but more often than not, don’t meet the test. These types of cases require very careful analysis before any action is taken.
Discrimination
An employee who has been suffering from work-related stress, depression, and anxiety for a long period of time caused or contributed to by being over-worked and over-burdened might be treated as a disabled worker for the purposes of the Equality Act 2010. He or she might be entitled to request reasonable adjustments to working patterns or duties and pursue claims for disability discrimination and harassment.
Protection from Harassment Act 1997 (PHA)
Depending on the circumstances, an employee may be able to bring a claim under the PHA, although such claims to date are rare in the context of the workplace. The PHA prohibits anyone from pursuing a course of conduct which amounts to harassment and which that person knows, or ought to know, amounts to harassment.
Conclusion
Taking legal action and pursuing one or more of the claims referred to above should be a last resort. Often these problems can be resolved informally, through discussion and co-operation with your managers.
However, we appreciate there are times when despite protestations, the situation simply doesn’t improve. If that is the case, speak to your professional association and take advice.
Please however be aware that if you have grounds to pursue an Employment Tribunal claim, such as unfair dismissal or discrimination, there are only very short timescales within which to act, and claims must generally be actioned within 3 months (less a day) of the date of the alleged unlawful act. Other claims, such as for personal injury, have longer time limits (up to 3 years from the date of injury), but you should not wait too long, otherwise, you might be prevented from pursuing a claim altogether. The precise time limits will depend on the circumstances of your case.
The information contained within this article should not be used as a substitute for taking legal advice.